rights of the accused
Mapp v. ohio (1961)
Case Background
directions
Read the Case
Background and the
Key Question. Then
analyze Documents
A-J. Finally, answer
the Key Question in a
well-organized essay
that incorporates
your interpretations
of Documents A-J,
as well as your own
knowledge of history.
The Fourth Amendment protects individuals from
unreasonable searches and seizures and requires two
branches of government to agree in order for search
warrants to be issued. But what happens when the police
do not act within the law, and conduct searches without a
warrant? The Fourth Amendment does not specify.
In a series of cases, the Court was asked to consider
whether criminal defendants’ convictions could stand if
illegally-seized evidence was used against them in Court.
In the 1914 case of Weeks v. United States, the Court
answered no. With this ruling, the Court established the
exclusionary rule for federal cases: evidence seized in
violation of the Constitution may not be used at trial. Among
the early critics of the exclusionary rule was Appeals Court
Judge Benjamin Cardozo. Cardozo famously objected in
1926, “The criminal is to go free because the constable
has blundered.”
About thirty-five years later in 1949, the Court declined
to apply the exclusionary rule to the states through the
Fourteenth Amendment’s Due Process Clause, reasoning
that states could use other methods of ensuring due
process of law.
When Mapp v. Ohio reached the Court in 1961, it was
not initially seen as a Fourth Amendment case. Dollree
Mapp was convicted under Ohio law for possessing “lewd,
lascivious, or obscene material.” Mapp appealed her
conviction. She based her claim on First Amendment
grounds, saying that she had a right to possess the
materials. When the case reached the Supreme
Court, however, the Justices did not address her First
Amendment claim. The Court instead overturned her
conviction because the evidence against her had been
seized without a warrant. In so ruling, the Court applied
the exclusionary rule to the states. The exclusionary rule
remains controversial. Supporters say it ensures liberty
and justice, while critics claim it actually threatens those
values.
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key Question
Assess the claim that the exclusionary rule helps ensure
liberty and justice.
Documents you will examine:
a
b
c
d
e
f
g
h
i
j
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James Otis, Against Writs of Assistance, 1761
The Fourth Amendment, 1791
Section of the Fifth Amendment, 1791
Section of the Fourteenth Amendment, 1868
Weeks v. United States, 1914
Wolf v. Colorado, 1949
Majority Opinion (6-3), Mapp v. Ohio, 1961
Concurring Opinion, Mapp v. Ohio, 1961
Dissenting Opinion, Mapp v. Ohio, 1961
“I Don’t Care That Your Conviction Was Overturned,” 2002
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document a
James Otis, Against Writs of Assistance, 1761
Note: Writs of Assistance were general search warrants allowing British officials
to search the Colonists’ homes and businesses when and where they pleased.
I will to my dying day oppose, with all the powers and faculties God has given me,
all such instruments of slavery on the one hand and villainy on the other as this
Writ of Assistance is. It appears to me the worst instrument of arbitrary power,
the most destructive of English liberty and the fundamental principles of law,
that ever was found in an English law-book….
[General writs of assistance are] a power that places the liberty of every man in
the hands of every petty officer. I say I admit that special Writs of Assistance, to
search special places, may be granted to certain persons on oath; but I deny that
the [general] writ now prayed for can be granted…
 What is the difference between general Writs of Assistance and
“special Writs of Assistance”?
document b
The Fourth Amendment, 1791
 What similarities do you see between the Fourth Amendment and
Otis’s description of “special Writs of Assistance” in Document A?
document c
Section of The Fifth Amendment, 1791
No person shall be … compelled in any criminal case to be a witness against
himself.
mapp v. ohio
 List three ways a person might act as a “witness against himself.”
©the Bill of Rights Institute
The right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be violated, and no
warrants shall issue, but upon probable cause, supported by oath or affirmation,
and particularly describing the place to be searched, and the persons or things
to be seized.
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document d
Excerpt from the Fourteenth Amendment, 1868
No state shall … deprive any person of life, liberty, or property, without due
process of law.
 Are the requirements of the Fourth and Fifth Amendments
(Documents B and C) essential parts of “due process of law”?
document e
Weeks v. United States, 1914
Where letters and papers of the accused were taken from his premises by an
official of the United States … without any search warrant and in violation of
the constitutional rights of accused under the Fourth Amendment, and … they
are used in evidence over his objections, prejudicial error is committed and the
judgment [conviction] should be reversed.
[The Fourth Amendment] took its origin in the determination of the framers of
the Amendments to the Federal Constitution to provide for that instrument a Bill
of Rights, securing to the American people … those safeguards … to protect the
people from unreasonable searches and seizures, such as were permitted under
the general warrants … and seizures under the so-called writs of assistance,
issued in the American colonies.
©the Bill of Rights Institute
 Why did the Court rule that illegally seized evidence may not be used
in federal criminal trials?
document f
Wolf v. Colorado, 1949
In Weeks v. United States, this Court held that in a federal prosecution the Fourth
Amendment barred the use of evidence secured through an illegal search and
seizure. This ruling was made for the first time in 1914. It was not derived from
the explicit requirements of the Fourth Amendment.…
mapp v. ohio
The exclusion of evidence is a remedy which directly serves only to protect those
upon whose person or premises something incriminating has been found. We
cannot, therefore, regard it as a departure from basic standards to remand such
persons … to the remedies of private action and such protection as the internal
discipline of the police, under the eyes of an alert public opinion, may afford.…
(continued on next page)
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We hold, therefore, that in a prosecution in a State court for a State crime the
Fourteenth Amendment does not forbid the admission of evidence obtained by
an unreasonable search and seizure.
 Why did the Court refuse to apply the exclusionary rule to the
states?
document g
majority opinion
Majority Opinion (6-3), Mapp v. Ohio, 1961
Since the Fourth Amendment’s right of privacy has been declared enforceable
against the States through the Due Process Clause of the Fourteenth, it is
enforceable against them by the same sanction of exclusion as is used against
the Federal Government … in extending the substantive protections of due
process to all constitutionally unreasonable searches—state or federal—it was
logically and constitutionally necessary that the exclusion doctrine—an essential
part of the right to privacy—be also insisted upon as an essential ingredient of
the right.…
[O]ur holding that the exclusionary rule is an essential part of both the Fourth
and Fourteenth Amendments is not only the logical dictate of prior cases, but
it also makes very good sense. There is no war between the Constitution and
common sense.
Our decision, founded on reason and truth, gives to the individual no more than
that which the Constitution guarantees him, to the police officer no less than
that to which honest law enforcement is entitled, and, to the courts, that judicial
integrity so necessary in the true administration of justice.
 Why did the Court apply the exclusionary rule to the states?
 What did the Court mean by “judicial integrity”?
mapp v. ohio
 Is the Court’s ruling the only way to protect citizens from
unreasonable searches? Can you think of any alternatives to the
exclusionary rule?
©the Bill of Rights Institute
There are those who say … that under our constitutional exclusionary doctrine
“[t]he criminal is to go free because the constable has blundered.” …[And] in some
cases this will undoubtedly be the result. But…there is another consideration—
the imperative of judicial integrity. …The criminal goes free, if he must, but it is
the law that sets him free. Nothing can destroy a government more quickly than
its failure to observe its own laws, or worse, its disregard of the charter of its own
existence.
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document h
Concurring Opinion, Mapp v. Ohio, 1961
I am still not persuaded that the Fourth Amendment, standing alone, would be
enough to bar the introduction into evidence against an accused of papers and
effects seized from him in violation of its commands. For the Fourth Amendment
does not itself contain any provision expressly precluding the use of such evidence,
and I am extremely doubtful that such a provision could properly be inferred
from nothing more than the basic command against unreasonable searches and
seizures. Reflection on the problem, however … has led me to conclude that
when the Fourth Amendment’s ban against unreasonable searches and seizures
is considered together with the Fifth Amendment’s ban against compelled selfincrimination, a constitutional basis emerges which not only justifies but actually
requires the exclusionary rule.
 How does this opinion come to the same conclusion as the majority,
yet for a different reason?
document i
Dissenting Opinion, Mapp v. Ohio, 1961
In this posture of things, I think it fair to say that five members of this Court have
simply “reached out” to overrule Wolf….
©the Bill of Rights Institute
It seems to me that justice might well have been done in this case without
overturning a decision on which the administration of criminal law in many of the
States has long justifiably relied….
I would not impose upon the States this federal exclusionary remedy….
Our concern here is not with the desirability of that [exclusionary] rule but only
with the question whether the States are Constitutionally free to follow it or not
as they themselves determine….
 Why are the dissenters concerned that the majority overruled Wolf
(Document F)?
mapp v. ohio
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document j
“I Don’t Care That Your Conviction Was Overturned,” 2002
 What is the cartoonist’s
viewpoint about the
exclusionary rule’s
relationship to moral
and legal justice?
Assess the claim that the
exclusionary rule helps ensure
liberty and justice.
mapp v. ohio
Answer the Key
Question in a wellorganized essay
that incorporates
your interpretations
of Documents A-J,
as well as your own
knowledge of history.
key Question
©the Bill of Rights Institute
directions
97
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the
endures
Georgia v. Randolph, 2005
…It is fair to say that a caller standing at the door of shared
premises would have no confidence that one occupant’s invitation
was a sufficiently good reason to enter when a fellow tenant stood
there saying, “stay out.” …There is no common understanding
that one co-tenant generally has a right or authority to prevail
over the express wishes of another, whether the issue is the
color of the curtains or invitations to outsiders….
We therefore hold that a warrantless search of a shared dwelling
for evidence over the express refusal of consent by a physically
present resident cannot be justified as reasonable as to him on
the basis of consent given to the police by another resident.
©the Bill of Rights Institute
 Why does the Court hold that police cannot search a
home without a warrant when one resident consents
to the search but the other does not?
 Do you agree with this ruling? Why or why not?
mapp v. ohio
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